Law 210 – Admin LawSpring 2011

Professor FordCamille Chisholm

Tools of Admin State

Boards and tribunals:

Admin law can be divided into 3 parts:

Tensions in Admin Law:

Evaluating Admin Agencies:

Building Admin Agency:

Procedural Fairness:

A. Threshold Question

B. The Content of Procedural Fairness

C. Bias and Independence

Substantive Error:

Three sources of review power:

s 96 Courts

The Rule of Law

Roncarelli

Manitoba Language Rights

Secession Reference

Imperial Tobacco

Christie

National Corn Growers

Remedies

Private Law Remedies:

Remedies at Tribunal Stage

1. Look to tribunal’s enabling statute

2. Potentially broader remedial scope than courts – aspects that can affect ADM remdies:

McKinnon v Ontario [innovative ADM remedies]

3. More efficacious – supposed to be cheaper, faster and more accessible

Enforcing ADM orders against parties

Tribunal:

Party:

Criminal Prosecution:

Challenging ADM orders:

1. Internal ADM mechanisms

2. External non court mechanisms (ex. Ombudsperson)

3. Using the courts

1. Statutory Appeal (the norm)

2. Judicial Review (the exception)

Domtar

oPrinciple of ROL must be qualified – it doesn’t trump other concerns

oInconsistent decisions are not sufficient for JR

oInconsistency = elusive principle

If this is a problem Exec should deal with it

Threshold Qs – is JR available?

McDonald v Anishinabek

Harelkin

3. Remedies on JR

THE DUTY OF FAIRNESS

1. Threshold: does PF apply

Nicholson

Cardinal v Kent

Inuit Tapirisat

2. Content: how much PF are you entitled to

Baker v Canada

Five criteria for determining degree of PF required

3. Did you receive as much PF as entitled to

PF may include:

1. Notice

2. Discovery

3. Written submissions

4. Right to a hearing within reasonable time

5. Oral hearing

6. Right to counsel

7. Right to call/cross examine witnesses

8. Right to written reasons for a decision

Clifford v OMERS - Reasons

Ganitano v Metro Vancouver Housing – Opportunity to be Heard

CHARTER AND PROCEDURAL FAIRNESS

Singh

Suresh

Blencoe v BC (Human Rights Commission) 2000 SCC

Suresh – incorporation of CL PF framework into Charter s 7 “fundamental justice”

INDEPENDENCE, IMPARTIALITY AND BIAS

1. Individual

Judicial Model of Independence

Matsqui Indian Band

Régie

Ocean Port

McKenzie

Keen v Canada

2. Systemic/Institutional

Consistency and Decision Making

Consolidated Bathurst – consultation to encourage consistency [FBMs]

Tremblay [compulsory consultation]

Geza v Canada – the “lead case” case

Factors That May Give More Entitlement to Independence

Standard of Review

History of SOR

CUPE v NB Liquor Corp – “deference as respect”

Bibeault

Crevier

Pasienchyk

Southam [move to focus on expertise]

1. Determine SOR

Factors for determining SOR – Pushpanathan

1. Privative clause

2. Expertise – was most important factor (before Dunsmuir)

3. Purpose of the act as a whole and of the provision in particular

4. Nature of the problem (question of law, fact or mixed fact and law)

Dunsmuir [intention to reform jurisprudence and make SOR workable]

Process of JR:

Reasonableness: deferential standard

Where reasonableness may apply:

Applying reasonableness SOR:

Correctness: no deference

2. Apply SOR

1. Correctness

2. Reasonableness

3. Patent Unreasonableness (if BC ATA applies)

DISCRETION

Roncarelli v Duplessis

Limitations on Discretion (Traditional Discretion Review):

Baker – for reviewing administrative discretion:

Suresh

BC ATA for reviewing discretionary decisions

CHARTER AND STANDARD OF REVIEW

1. Applying Charter to ADM decision

o1. Orthodox approach

o2. Mixed approach

o3. Admin law approach

TWU

Chamberlain

Slaight Communications – first consideration of application of Charter to admin decision

Multani

Multani concurrence (Admin Law approach):

2. Can ADMs interpret and apply the Charter to their ES

R v Conway

STATUTORY REFORM: Administrative Tribunals Act

Appointment Process

Time Limit for JR [s 57]

Standard of Review with Privative Clause [s 58]

Standard of review if tribunal's enabling Act has no privative clause [s 59]

Dispute Resolution Process

Charter questions

Khosa – relationship between common law SORs and statutory instruments (ex. ATA, Fed Court Act)

Khosa and the BC ATA

Delegation as a Tool

Thorne’s Hardware

Enbridge Gas [process requirements around consultation]

Tools of Admin State

Boards and tribunals:

  • Established by legislation to attain a public policy goal or goals
  • Have no inherent jurisdiction – just what is provided in ES
  • Often somewhat independent from government that established them (degree of independence depends on legislation)
  • Members of the board or tribunal are appointed to bring particular expertise to the decision-making
  • Purpose built entities – what they are supposed to be doing will affect how they are built

Admin law can be divided into 3 parts:

  • Procedural fairness – is this an issue courts should review and if so did the tribunal use the proper procedures in reaching a decision
  • Substantive fairness – regarding the decision itself, did the tribunal make an error of the kind or extent that the court is willing to get involved
  • Remedies and the legitimacy of judicial review

Tensions in Admin Law:

  • Executive authority and the ROL
  • Expertise and accessibility - risk that the ADM becomes too specialized and can’t be appealed because no one knows more about the topic
  • Efficiency and democracy

Evaluating Admin Agencies:

  • 5 “bureaucratic” criteria
  • Effectiveness at meeting objectives
  • Efficiency – cost/benefit analysis
  • Equity
  • Manageability
  • Legitimacy/political feasibility
  • 3 “legal” criteria
  • ROL
  • Procedure
  • Precedent

Building Admin Agency:

1. Can’t completely preclude JR with PC (Crevier – PC is instructive but not determinative)

2. Can’t create ADM that is essentially a court – if ADM is overlapping with court’s s 96 powers (Re Residential Tenancies Act)

Procedural Fairness:

  • The court in reviewing the tribunal’s actions isn’t interested in the actual decision – but in the procedures followed by the tribunal in making that decision

A. Threshold Question

  • Is this the kind of decision that should attract some kind of procedural right?
  • Asking whether or not there should be any entitlement to procedural fairness at all
  • Generally if through delegation by the legislature of governmental power, a decision is made that affects an individual’s rights or interests there will be some minimum entitlement to procedural fairness
  • Also consider the doctrine of legitimate expectations – in what circumstances, if any, an individual should be entitled to certain procedural rights if a representation of some form has been made that such rights would be forthcoming
  • Another component of this threshold question is the Charter

B. The Content of Procedural Fairness

  • Five factors in determining general level of procedural fairness– not exhaustive(Baker):

1. Nature of decision and process followed in making it

2. Nature of the statutory scheme

3. Importance of the decision to the individual affected

4. Legitimate expectations of the parties

5. Procedure chosen by the tribunal

  • Court will determine general level of procedural fairness, then decide what specific procedures are required. [often ask “to what extent should the administrative decision maker act like a court?”]
  • Often the legislation will expressly lay out the kinds of procedures that applicants are entitled to
  • Common law may expand on these but the first place to look is the statute
  • Administrative Tribunals Act (BC) – umbrella act which sets out procedures for all tribunals
  • Where a statute specifies a kind of procedural right or specifically denies a procedural right that would otherwise have been available in common law, the statute prevails over common law

C. Bias and Independence

  • Individual bias
  • Institutional/systemic bias

Bias that is built into the statute or ADM

Everything that comes out of the machine will be flawed

  • How independent is the tribunal from the government creating it

Substantive Error:

1. Standard of Review – Pushpanathan and Dunsmuir

2. Whether that standard was met

  • Court looks at decision itself – not just procedures followed in reaching the decision
  • Courts ask what the standard of review is – ie. how big an error must the tribunal make before the court will get involved?
  • Standard of review – level of intensity with which the court will review a decision
  • 2 possibilities:
  • Standard of correctness: most exacting standard, was it a correct decision, the same decision the court would have reached
  • Standard of reasonableness: middle ground, decision can fall within a band of reasonable decisions even if not the exact decision the court would have made
  • If the statute setting up the tribunal has a privative or preclusive clause – which says that the tribunal’s decision is final and not open to review by the courts
  • This is treated as just one factor (but a significant one) in determining standard of review
  • As with privative clauses – the existence of a statutory right of appeal is just one factor among many to be weighed in determining the standard of review

Three sources of review power:

  • Original jurisdiction – ordinary courts have jurisdiction over decisions of administrative decision-makers when they are challenged by way of direct actions by a citizen in contract or tort on ground that the state has infringed an individual’s private legal right [ie. sue gov through ordinary civil law]
  • Statutory right of appeal (“appellate jurisdiction”) – no general common law right to appeal the substance of a decision
  • Right to appeal must be contained in statute – if no appeal right in statute = no appeal
  • JR is different from stat right of appeal – JR disregards lack of stat right to appeal
  • Courts’ inherent judicial review jurisdiction – superior courts of each province may review decisions made by institutions and officials with responsibility for administering public programs
  • Superior courts may hear any matter unless there is a specific statute that says otherwise or grants exclusive jurisdiction to anther court or tribunal
  • JR = justice and ROL require court involvement even though courts aren’t supposed to be involved

s 96 Courts

  • Appointment of superior court judges is responsibility of fed gov
  • Provinces cannot create a court and call it an administrative tribunal to get around this (Re Residential Tenancies Act)
  • Three part test to determine whether administrative tribunal is acting like a s 96 court:
  • Historical inquiry
  • Is the impugned power a “judicial” power as opposed to an administrative or legislative power
  • Judicial power – one where there is a private dispute between parties, adjudicated through application of a recognized body of rules and in a manner consistent with fairness and impartiality
  • Has the power in its institutional setting changed its character sufficiently to negate broad conformity with superior, district or county jurisdiction

The Rule of Law

  • ROL constraints both legislative and court actions
  • Characterized by three interrelated features:
  • Jurisprudential principle of legality
  • Activity or practice of law-making among and within an institutional arrangement of government
  • A distinctive political morality
  • Rule of law = government action must be sourced in law and therefore bound by law in order to be considered both valid and legitimate
  • If branch of gov steps outside its constitutional role or function, the action or decision will be considered arbitrary in the sense that it is ultra vires its jurisdictional limits

Roncarelli – classic statement of ROL

No public official is above the law

Offends ROL where substance of decision is incompatible with the statute – must have regard for nature and purpose of statute

Violated legal principle of “validity” – can’t be a capricious decision

Manitoba Language Rights
  • But for the ROL there would be no constitutional structure – it is fundamental part of constitutional structure
  • Law is supreme over gov and individuals
  • Law and order are indispensible elements of civilized life within political community
  • ROL requires creation and maintenance of actual order of positive laws
  • Constitution is deeply intertwined with principle of parliamentary supremacy and democracy
  • Linked to judicial independence
Secession Reference
  • 4 unwritten principles of Canadian constitutional order:
  • Federalism
  • Democracy
  • Constitutionalism and ROL
  • Respect for minorities
  • No one principle trumps the others – they are highly interrelated
  • These are organizing principles of the state, aspirational ideals
  • ROL is important but must be balanced against other considerations

Parliamentary supremacy and democracy are constrained by the unwritten ROL

Unwritten ROL also constrains courts from unilaterally, arbitrarily or anti democratically substituting their views for those of Parliament

Imperial Tobacco- If the legislature validly enacts a statute – courts can’t come in and overrule it

  • Unwritten principles of ROL in constitutional law doesn’t give courts power to strike down legislation otherwise validly enacted – cannot strike down legislation based on content (Imperial Tobacco)

Christie - ROL doesn’t include access to justice

National Corn Growers – deference as respect

  • Court’s job policing ROL is limited by parliamentary supremacy and intention of the legislature

Remedies

  • Enabling statutes may limit the scope of court intervention in multiple ways
  • Privative clauses
  • Provide appeal mechanisms that are internal to the tribunal itself
  • Appeal to courts only after party has exhausted all avenues of appeal (including internal appeal mechanisms)

Private Law Remedies:

  • Tort of misfeasance in public office (Odhavji)
  • Damages in tort
  • Doesn’t apply where you could get normal admin remedies
  • Only applies where you can’t appeal the decision
  • Limited application

Remedies at Tribunal Stage

  • Tribunal doesn’t have general jurisdiction of court – therefore power to impose a particular remedy must be provided for in tribunal’s enabling statute
  • Statutorily authorized
  • Broader in remedial scope
  • More efficacious
  • Tribunal approaches to remedies reflect different composition, structure and mandates from courts

1. Look to tribunal’s enabling statute

  • Tribunal can’t make orders outside the scope of enabling statute
  • If it does = exceeding its jurisdiction and those orders will be void
  • Listed remedies - Many ES set out express lists of remedies a tribunal may order
  • General remedies - Other ES provide their tribunals broad discretionary power to make remedies they see fit
  • Implicit remedies - Even where remedial power uncertain and no discretionary power – may argue that tribunal must have remedial power to do the things its ES requires it to do [not very successful argument – focus on ES]
  • Orders for payment of money – generally can only be ordered by tribunals with express statutory authority – never have implicit authority to order money damages
  • Tribunals don’t have equitable jurisdiction to order interim injunctions (may have statutory authority to seek an injunction in court)

2. Potentially broader remedial scope than courts – aspects that can affect ADM remdies:

  • Deal with systemic problems
  • Policy issues; governmental priorities
  • Forward looking
  • Seised over time – ADM can maintain jurisdiction (ex. McKinnon)
  • Have to consider multiple parties
  • Affected by unique nature of ADM membership/expertise
  • Span the public/private divide
McKinnon v Ontario [innovative ADM remedies]
  • Tries to create meaningful systemic change within the organization – based on sustained engagement with the problem by the impartial third party
  • Much more sweeping remedies than courts could provide
  • Dealing with forward looking, polycentric, systemic problems

3. More efficacious – supposed to be cheaper, faster and more accessible

Enforcing ADM orders against parties

Tribunal:

  • 1. A tribunal may enforce its own orders – RARE
  • Must be given enforcement powers in ES
  • Must be constitutionally valid
  • Otherwise have to convert to court order
  • 2. Tribunal makes an application in court to enforce an order it makes – COMMON

Once tribunal order converted into court order = enforced in same way as court judgment

  • ATA has sections to assist tribunals in obtaining compliance with their orders [s 18]

Party:

  • May bring action in court against another party to enforce tribunal’s order

Criminal Prosecution:

  • Crim Code s 127 - Offence to disobey a lawful order of a fed/prov ADM
  • Only available if there is no other punishment provided by law (nothing in ES)

Challenging ADM orders:

1. Internal ADM mechanisms

  • Slip rule – CL rule to fix clerical errors
  • Reconsideration – decisions not final until in writing
  • Have to have power to reconsider in the ES
  • If not in ES – ADM is functus after decision made
  • Internal appeals/review – must exhaust internal steps before going to court

2. External non court mechanisms (ex. Ombudsperson)

  • Only available after you exhaust internal steps

3. Using the courts

1. Statutory Appeal (the norm)
  • Scope of possible appeal confined to what is expressly provided by ES
  • Easier to predict availability/outcome of appeal (versus JR)

a)Is appeal available – does ES provide for right of appeal

  • Courts have no inherent appellate jurisdiction over ADMs
  • If not provided in ES = no appeal to courts (have to access courts through JR)
  • ADMs decision must decide merits of the matter – or otherwise be final disposition of matter
  • ES usually sets out what court to appeal to
  • Right to appeal is more common where ADM has power to affect individual CL rights

b) Scope of available appeal

  • Determined by ES (court’s breadth and scope of appellate powers comes from ES)
  • Scope varies by ADM – sometimes get complete de novo review; sometimes limited to issues of law
  • Generally scope is broader where ADM more closely mirrors courts
  • Even where appeal rights are broad – courts will show some deference to ADM findings of fact

c) Is appeal available as of right or with leave?

  • Usually request leave from appellate court
  • Look at ES – it will tell you who to request leave from

d) Stay of proceedings – automatic or apply?

  • Unless statute excludes it – designated appellate court has inherent authority to grant a stay
  • ATA[s 25] – appeal doesn’t = automatic stay (must apply for a stay in BC)
  • This section only applies to a few ADMs though
2. Judicial Review (the exception)

DISCRETIONARY – not automatic on prima facie case (shows respect for separation of powers, legislative intention that courts stay out)

  • Domtar – two ADMs applying same provision differently; mere inconsistency is not enough for court to exercise discretion to do JR
  • Principle of ROL must be qualified – it doesn’t trump other concerns
  • Inconsistent decisions are not sufficient for JR
  • Inconsistency = elusive principle
  • If this is a problem Exec should deal with it
Threshold Qs – is JR available?

a) is the ADM public enough

  • Only public bodies are subject to JR (its function is to keep Exec in check)
  • McDonald v Anishinabek – action authorized by code of conduct not statute; subject matter not source determines remedy
  • Consider: ADM’s functions, duties, sources of power, funding, whether gov directly or indirectly controls, whether gov would have occupied the field if ADM not there
  • ADM’s power over public at large; nature of members; how appointed; nature of decisions
  • Subject to JR if “part of the machinery of gov”
  • If ADM fulfills public function OR decision making has public law consequences THEN duty of fairness applies and decision is subject to JR

b) Standing – whether party has standing to challenge decision